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Saturday, October 22, 2011

Pushback by Morton prosecutors prevent exposure of 25-year old secrets on withheld evidence

I know Grits readers will be shocked to learn that the prosecutors who secured the false conviction against Michael Morton in Williamson County are fighting to keep from giving depositions as to how and why exculpatory material in the case was never turned over to the defense. Reports Chuck Lindell at the Austin Statesman:

The former prosecutors who tried Morton for murder in 1987 — District Judge Ken Anderson and Round Rock lawyer Mike Davis — have filed motions in state District Court in Williamson County to quash subpoenas issued last week by Morton's lawyers.

The subpoenas were part of a negotiated agreement with District Attorney John Bradley, who was not involved in Morton's prosecution, allowing defense lawyers to investigate allegations that Anderson and Davis hid evidence pointing toward Morton's innocence.

But because details of that agreement were hidden in sealed court files, outsiders could only speculate about what form Morton's investigation would take — until Anderson and Davis filed their motions and included copies of their subpoenas.

In addition to testifying next week, Tuesday for Davis and Wednesday for Anderson, the subpoenas direct them to produce all documents — including letters, notes, diaries, calendars, faxes and recently sent electronic messages — that "in any way" involve Morton.

In their motions to quash, Anderson and Davis argue that Morton's lawyers lack the authority to issue subpoenas and that District Judge Sid Harle, who is handling the Morton case, lacks the jurisdiction to enforce the orders to testify by deposition.

The Texas Tribune has additional coverage including links to the briefs (see pdfs here and here), and the Williamson County Sun has compiled all their coverage here. Both Anderson and Davis claim that, despite the agreement between John Bradley and Morton's attorneys specifically allowing for Morton's legal team to hold depositions interrogating evidence of prosecutor misconduct, there is no legal authority for seeking the depositions, hoping the courts will split legal hairs to avoid them testifying under oath. Davis said he was sorry offered to speak with Morton's attorneys privately but neither man is willing to give sworn testimony. (With that apology and $4 Morton could buy himself one of those fancy coffees at Starbucks.)

Basically Anderson and Davis' argument is that, while the district court had authority to order such depositions, the case is now before the Court of Criminal Appeals and thus Morton has no standing to seek depositions under a district court order. Morton's attorneys responded in a reply brief (pdf) that::

The parties agreed that Mr. Morton had the right to avail himself of that procedure, and thereafter entered into a proposed agreement, which they sought to have approved and entered by this Court, to conduct more limited discovery under art. 11.07 in exchange for certain other agreed findings and Mr. Morton's immediate release from custody on a signature bond. Specifically, the parties agreed and proposed to this Court that in conjunction with the entry of an order adopting the parties' Findings of Fact and Conclusions of Law as to Claim One (actual innocence), the Court would also order the parties to conduct certain discovery. This discovery includes, but is not limited to, the sworn, videotaped depositions of the two Movants.

So Williamson County DA John Bradley agreed to expedite the Morton's release because of the proof-positive DNA evidence, but agreed in a (presently sealed) court order that to allow Morton's legal team to pursue the prosecutorial misconduct issues using discovery power afforded under the writ process at the district court level. Moreover, "This agreement was made in express consideration for Mr. Morton's waiver of his statutory right to conduct far more extensive discovery on the issues pending in his application for a writ of habeas corpus, as was noted both in chambers and in open court." When Bradley tried to prematurely end that investigation by finalizing the CCA case before that agreement ended, Morton's attorneys objected and he withdrew his motion.

This desperate bobbing and weaving to avoid testifying under oath reminds me in some ways of the Todd Willingham case, where prosecutors used technical jurisdictional arguments to shut down inquiries into flawed arson science in the courtroom and at the Forensic Science Commission. Now supposedly Morton's attorneys can't investigate so-called "Brady" violations - the withholding of exculpatory evidence - even with a court order, supposedly, because of similar jurisdictional concerns. So if prosecutors can't prove that they're right on the merits, clearly the go-to backup plan is to claim nobody has the right to investigate the issue in the first place.

John Bradley said he encouraged Anderson and Davis to comply with the supboenas, but also this week Mr. Bradley himself refused to turn over materials relevant to the prosecutorial misconduct investigation by Morton's lawyers. Reported the Williamson County Sun:

District Attorney John Bradley pledged his cooperation with their investigation into possible misconduct as part of the agreement to release Mr. Morton from prison.

But defense attorneys said in a Thursday motion that Mr. Bradley has not provided them with all the documents they’ve requested, specifically prosecutors’ personal notes on the case.

The district attorney informed them that his office reviewed those documents and found nothing relevant to the allegations against Mr. Anderson and Mr. Davis. He has refused to hand over the files so Morton’s attorneys can personally review them.

And in a potential bombshell, his attorneys also claimed that “persons acting at Mr. Bradley’s behest” may have already gathered admissions of wrongdoing from the prosecutors and investigators accused of official misconduct.

Despite Mr. Bradley’s pledge to cooperate in the investigation, he has not shared that information, but offered to have his office review the files again for relevant material, the motion said.

Morton’s attorneys requested that Judge Harle, who is overseeing the investigation, force the district attorney to turn over the documents.

“This proposal is an inadequate substitute for full disclosure,” attorneys said in the motion. “The public’s interest in the orderly and complete administration of the discovery process is understandably high.”

Wilco Watchdog believes that "The legal wrangling and stall tactics are quite telling. If Davis and Anderson have nothing to hide, why not appear in deposition and answer questions? If John Bradley has nothing to hide for his involvement over the past six years, why not turn over all documents to Morton’s attorneys so all information is available for a proper and thorough investigation?"

Normally I'm not a big fan of the "if you have nothing to hide" argument, however we're not talking about private conduct but actions undertaken on the public's behalf that led to a great injustice. Anyway, this is part of a broader pattern. Just as Bradley did in the arson investigation surrounding the Todd Willingham case, we see him slow-walking the Morton investigation, hoping to stall it long enough for him to kill it, same as he did fighting the DNA-testing of the bloody bandana for years. Can it be that nobody, anywhere, in Mr. Bradley's view has jurisdiction to investigate the causes of false convictions? This schtick is getting old.

11 comments:

Anonymous
said...

One has to wonder if Morton's lawyers, inexperienced in Texas habeas procedure, were hoodwinked into an unenforceable and illusory discovery agreement. Either way the trial judge goes, mandamus proceedings in a higher court are almost inevitable, and soon 30 days is gone . . .

My "favorite" part of this whole affair is that these guys are spending an amazing amount of time trying to cover for themselves and each other but are in no particular hurry to go get the guy whose DNA was found on the bandana.

This is absolutely disgusting! One of the worst incidents of malpractice I've ever read about. It is a travesty that prosecutors aren't held to the same standards others are. Why aren't they just as culpable? Texans should be mad as hell that their justice system is operating this way. How can people let them get away with this? What a sad state of affairs.

There is a far greater consequence to the seeming misconduct of the Morton prosecutors. The staggering injustice of putting Morton in prison wrongfully for almost 25 years is hard to even imagine. But, had those prosecutors actually done their jobs and fully investigated that murder, the killer probably could have been found then and stopped. Instead he was left free to continue his crimes. He murdered Debra Masters Baker, a beautiful, loving woman, in Jan 1988 - my wife and mother of my children. Like Eric Morton, Debbie's son also lost his mother. The sorrow and grief suffered by all those who knew Debbie has lasted 23 years with no sign of resolution until now. It would be impossible to articulate the deep wounds those poor kids have borne all these years with no end, no closure..

In my mind Anderson, Davis and Bradley are complicit in the murder of Debra Baker and should have to pay for it.

L. Roth & the mad as hell crowd, You don't have to go far to learn about similar despicable cases of injustice(See: GFB Archives). As you can see from this GFB piece, they (Prosecutors) get away with it because of self imposed loopholes.

Anytime you have / allow for a "Not It" clause you get what you deserve. A shit-load of us Texans (including transplants) are very mad and have decided we've had it. There's nothing stopping you from contacting those that you voted for and those you intend to in the future to voice your concerns but fear itself.

Toll Free lines, email, .44 /.45 cent stamps & a few moments of your time away from blogs is all it takes. Thanks.

Thomas, a lot of that has been in the MSM coverage. I'd suggest checking Chuck Lindell's coverage in the Statesman archives and also the two-part series at the Williamson County Sun, as well as coverage at Wilco Watchdog, who tends to name names and link to primary source documents.

Mr. Baker I'm sorry for your loss. I am ashamed and saddened that our system provides fertile ground for pricks like Bradley to spread their hubris. I really doubt that the perpetrator of these crimes stopped at two.

I appreciate the kind words of you two. But our feelings aside, this misconduct may have had lethal consequences. I have been told by some sources that this killer's spree did not stop at 2. And the notion that the killer suddenly stopped his killing in 1988 is not likely. In the end I suspect we'll have a serial killer at the heart of all this.

Meanwhile there is the problem DA immunity which must be addressed and curtailed in the next Lege. As to Judge Anderson, how can the State Bar or Judicial Qualifications Commission allow him to continue in that post. Should any lawyer who commits such acts be allowed to continue practicing law? How can anybody possibly trust in their integrity anymore?

One last thing- I hope to convince somebody in a official capacity to look into other cases. Everybody always mentions cold case files. But this re-examination of similar killings should include ALL those cases. Are there more Michael Morton's rotting away in our prison system?

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